The Simpson Trial : Will There Be Life in Court After the Jury Dwindles to 11?

The jury is still out on whether O.J. Simpson will have a jury at the conclusion of his double-murder trial. So many Simpson jurors have disappeared that Judge Lance A. Ito’s Department 103 has been dubbed “Argentina.�

Lead defense counsel Johnnie L. Cochran Jr. has repeatedly said his client would happily continue with 11 or fewer jurors. Everyone seems to have accepted his statement at face value, maybe because Cochran keeps pushing the idea that the defense is ahead on points. But is he bluffing? By the end of trial--whether by verdict, hung jury or mistrial--Simpson will be near-broke.

No one seriously entertains the notion, however, that Cochran will walk away from a Simpson retrial. Whether Robert L. Shapiro sticks around will be up to the principals.

Conventional wisdom has it that Dist. Atty. Gil Garcetti, though he has taken no public position on a smaller jury, must agree to go with fewer than 12 or risk reelection suicide. But what if Deputy Dist. Atty. Marcia Clark tells Garcetti that the under a dozen jurors appear unpersuaded of Simpson’s guilt? Having just completed the cornerstone of their case--the DNA evidence--the prosecutors do not sound like happy campers. Deputy Dist. Atty. Christopher A. Darden says he may leave law after this case. Another prosecutor left court last week saying that the Simpson case’s twists and turns were “unprecedented,� by which he obviously meant “profoundly weird.�

So does Garcetti risk a jury hang that splits against the prosecution--or even a possible acquittal--if he has the option to fight another day against opponents weakened by a lack of resources?

Both Cochran and Shapiro are the “rainmakers� for their law firms--the lawyers whose names bring in the business. Both must contract enough work to support the partners and associates who work with them, as well as support staffs and overhead. Jay Leno regularly makes his greedy-lawyer jokes, but he presumably understands that dozens of people depend on his success.

How would Simpson defend himself in a second trial? Would Cochran be allowed to retain, at county expense, the same “big guns� of forensic science? Worse yet, would Cochran allow Ito to determine which experts he could--or could not--use and their rate of pay. Because that is the way the system works for the 99%-plus of capital defendants who are not named Menendez or Simpson.

So, if Garcetti chooses to take the heat and refuses to stipulate to fewer than 12, Cochran and company end up with money problems. Cochran, presumably, has already thought through the next steps. One: O.J. Simpson could have gotten acquitted by the jurors sitting on his first trial. Two: Garcetti chose to force a bankrupt Simpson into a needless second trial because Simpson lacked the funding. Three: Even a rich black man cannot get a fair trial in Los Angeles.

Cochran might then suggest to every microphone thrust at him that Garcetti should no longer take for granted the black vote in his reelection bid, thus turning political suicide into political homicide.

Finally, one arrives at Ito’s agenda. Having been chastised by legal commentators for his loose control during the first months of the trial, the judge has overcompensated and now exerts Captain Queeg-like control. Last week, using his “sky camera,� Ito caught three reporters--Jessica Seigel of the Chicago Tribune, Sally Ann Stewart of USA Today and Kimberly Maroe of KCAL-TV--chewing gum, sucking on lozenges or straining for a better view. They were summoned into the judge’s chambers and personally reprimanded.

Such is not the sign of a detached judicial perspective, nor is it consistent with the personality of a judge whom the lawyers have known for years. While the trial remains afloat, the captain is getting a little quirky.

In short order, Ito has removed four reportedly strong-willed jurors: Willie Cravin, Farron Chavarria, Francine Florio-Bunten and Jeanette Harris.

There is no evidence that any of these jurors had become biased and could not be fair to the defense or prosecution--the sole legal standard that Ito can apply for removing them.

Of equal concern, Ito has been removing jurors in a private setting and sealing the transcripts. No observer can tell if his decision-making has been rational or arbitrary, or whether the reasons he has used to remove jurors amount to valid legal cause. Furthermore, there is no precedent for this sort of action with a sequestered jury, and there is no countervailing constitutional interest that compels secrecy. Indeed, the one unanimous point the dismissed jurors agree upon is that they were unfairly dismissed and do not know why.

Eventually, someone may figure out that a writ of mandamus to the Court of Appeal directing release of the juror interviews is a First Amendment winner.

The bottom line is that by tossing off strong individualists, Ito may massage the jury into a cohesive, cuddly group who will not fight, yell or be disagreeable. Of course, the whole purpose of a jury trial is to ensure that no one should be found guilty unless 12 people who might fight, yell or be disagreeable eventually agree unanimously on guilt or innocence.

But in his quest to speed up the trial and ensure a verdict, Ito may provoke the worst of all possible scenarios from a higher court:

“The trial judge abused his discretion in dismissing jurors based on character traits, even if those traits offended other jurors, and the other jurors unanimously found them disagreeable. The sole criterion for removing a juror prior to deliberation is demonstrable evidence that the juror is unable to be fair. The reasons given in the record below are inadequate to support the numerous dismissals of sitting jurors on a capital trial. Simpson’s plea of ‘once in jeopardy’ (double jeopardy), under Penal Code Section 1004, is well-taken. Further prosecution is constitutionally barred. The trial court is directed to dismiss the information and discharge the defendant.�